Beltran-Serrano v. City of Tacoma

TCE

AFM ~E\

SUPREME COURT, STATE OF WASHINGTON This opinion was

|. pare_JUN | 3° ig an ganon (eT 14

“TH St, GG

Sill Dlr HCht—

usan L. Carison

Supreme Court Clerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

CESAR BELTRAN-SERRANO, an

incapacitated person, individually, and

BIANCA BELTRAN as guardian ad litem of

the person and estate of CESAR BELTRAN-

SERRANO, NO. 95062-8

Petitioners,

v. EN BANC

CITY OF TACOMA, a political subdivision

of the State of Washington, Filed JUN 1 3 2019

Respondent.

STEPHENS, J.—Cesar Beltran-Serrano, a mentally ill homeless man, was

shot multiple times by Tacoma Police Officer Michel Volk, after a simple social

contact escalated to the use of deadly force. Beltran-Serrano survived the shooting

and, through a guardian ad litem, brought this action for negligence and assault and

battery against the city of Tacoma (City). The Pierce County Superior Court

dismissed the negligence claims on summary judgment, agreeing with the City that

the sole avenue for any recovery must be an intentional tort claim for assault and

battery.

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

We reverse. The fact that Officer Volk’s conduct may constitute assault and

battery does not preclude a negligence claim premised on her alleged failure to use

ordinary care to avoid unreasonably escalating the encounter to the use of deadly

force. Under well-established negligence principles, police officers owe a duty of

reasonable care in situations such as this. Beltran-Serrano has presented evidence

to allow a jury to find that the City failed to follow accepted practices in Officer

Volk’s interactions with him leading up to the shooting and that this negligence

resulted in his injuries.

FACTS AND PROCEDURAL HISTORY!

Beltran-Serrano suffers from mental illness and has limited English language

proficiency. On June 29, 2013, he was homeless when Officer Volk noticed him

standing on the corner of East 28th Street, an area of Tacoma where the police had

received multiple complaints about panhandlers. Officer Volk parked her patrol

vehicle near Beltran-Serrano and approached him with the goal of educating him

about the City’s panhandling laws. She did not have reasonable suspicion or

probable cause to believe he was committing a crime.

' Because we are reviewing an order granting summary judgment, we consider all

facts and reasonable inferences in the light most favorable to Beltran-Serrano, the

nonmoving party. Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 784, 30

P.3d 1261 (2001) (plurality opinion). Our review is de novo. Id.

-2-

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

As Officer Volk approached Beltran-Serrano, he laid down on his stomach

and started digging in a hole. Officer Volk greeted Beltran-Serrano, but he looked

up at her blankly and kept digging in the hole. Noticing that the hole contained

mainly garbage, Officer Volk observed Beltran-Serrano pull out an old soda

container, take a drink, and throw it back in the hole. When Officer Volk asked

Beltran-Serrano if he understood English, he shook his head no. Officer Volk then

radioed for a Spanish-speaking officer. Officer Jake Gutierrez, who spoke Spanish,

was within one and a half to five minutes away.

Instead of waiting for Officer Gutierrez to arrive, Officer Volk attempted to

engage Beltran-Serrano in conversation; he was nonresponsive. She attempted to

get Beltran-Serrano to produce identification, gesturing to indicate she wanted to see

an ID card. Beltran-Serrano began to pat his pockets as if to look for identification,

but then he bent down and reached back into the hole. When Officer Volk moved

closer to Beltran-Serrano and continued to address him in English, he became scared

and started to run away. Officer Volk shot him in the back with a stun gun as he ran

across the street. Clerk’s Papers (CP) at 400-01. The stun gun did not have the

desired effect, and Beltran-Serrano continued to run away. Jd. Officer Volk then

pulled out her duty weapon and fired multiple shots until Beltran-Serrano fell to the

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

eround. CP at 401. The total time between when Officer Volk called for a Spanish-

speaking officer and the shooting was 37 seconds. CP at 396.”

In resisting summary judgment, Beltran-Serrano offered declaration

testimony from multiple witnesses who stated that they did not see Beltran-Serrano

assault Officer Volk or brandish any weapon and that there was no instance of

struggle or altercation on the street corner. Witnesses expressed concern as to why

Beltran-Serrano was shot because he did not appear to be acting aggressively or

making threatening motions. CP at 415-16, 432-33. A shooting scene

reconstruction led a ballistics expert to conclude that “[nJone of the fired bullet paths

to Beltran-Serrano support him ‘swinging’ or otherwise moving his arms at the time

of receiving the gunshots.” CP at 459.

Through a guardian ad litem, Beltran-Serrano brought this action against the

City. In addition to a claim for assault and battery, his complaint alleged that Officer

Volk improperly, unreasonably, and unnecessarily escalated the situation, and that

* The City offers a different view of the facts. According to Officer Volk’s

statement, after Beltran-Serrano reached back into the hole, he grabbed what appeared to

be a piece of construction pipe that was bent into an oval shape. CP at 365. Beltran-

Serrano swung the object at Officer Volk’s upper body, and she blocked the strike with her

left forearm before giving chase to Beltran-Serrano as he ran into the street. Jd. As Beltran-

Serrano was running away, Officer Volk discharged her stun gun, hitting Beltran-Serrano

in the back, at a distance of approximately seven yards. CP at 366. After the stun gun

appeared to have no effect, Officer Volk maintains that Beltran-Serrano turned toward her,

raised the object above his head as if to strike, and began to move in her direction. Jd.

Officer Volk then drew her firearm and fired until Beltran-Serrano “dropped the pipe and

fell to the ground.” Jd.

4.

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

the City failed to properly train and supervise officers to deal with the mentally ill

and to exercise appropriate force. CP at 77. The City filed a motion for partial

summary judgment, arguing it owed no duty of reasonable care to Beltran-Serrano.

Specifically, the City asserted that (1) a negligence claim could not be based on an

intentional tort, (2) the public duty doctrine barred any negligence claim, and (3) a

negligent training and supervision claim was unavailable because Officer Volk was

acting within the scope of her employment. CP at 240-54. The Pierce County

Superior Court granted the City’s motion to dismiss the negligence claims and

entered an order certifying for interlocutory review the issue of “whether a police

officer owes a duty of reasonable care to act reasonably when using deadly force.”

CP at 698-99, 757.3 Beltran-Serrano then filed a motion for direct discretionary

review in this court, which our commissioner granted pursuant to RAP 4.2(a)(4).4

3 The order on summary judgment dismisses “plaintiff’s negligence claims ... in

their entirety.” CP at 699. However, the separate certification order framing the issue for

review does not reference the negligence claims based on the City’s duty to train and

supervise employees. CP at 757. Beltran-Serrano’s motion for discretionary review is

similarly limited to this focus. See Mot. for Discr. Review at 1. Given the limited issue

identified in the certification order and the motion for discretionary review, we have not

separately addressed Beltran-Serrano’s negligence theory based on the City’s training and

supervision of its employees. We leave it to the superior court on remand to determine,

consistent with the reasoning in this opinion, whether that negligence theory remains for

trial.

* The City separately sought discretionary review in the Court of Appeals of an order

granting partial summary judgment to Beltran-Serrano concerning the reasonableness of

medical expenses. That matter has been stayed pending this review.

5-

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

ANALYSIS

Claims of negligent law enforcement are not novel. Washington courts have

long recognized the potential for tort liability based on the negligent performance of

law enforcement activities. See, e.g., Washburn v. City of Federal Way, 178 Wn.2d

732, 310 P.3d 1275 (2013) (negligent service of a protective order); Chambers-

Castanes v. King County, 100 Wn.2d 275, 669 P.2d 451 (1983) (negligent failure to

respond with police assistance in a timely manner); Mason v. Bitton, 85 Wn.2d 321,

534 P.2d 1360 (1975) (negligent police vehicle chase); Garnett v. City of Bellevue,

59 Wn. App. 281, 796 P.2d 782 (1990) (negligent infliction of emotional distress for

officers’ harsh and offensive language in responding to a call that plaintiffs were

loitering). Indeed, the City readily acknowledges that such liability is consistent

with the broad waiver of sovereign immunity for municipalities under RCW

4.96.010. Br. of Resp’t at 10.

The question in this case is whether a claim of negligence can be based on

Officer Volk’s shooting of Beltran-Serrano when it is clear the shooting was

intentional, i.e., volitional. The City insists that “[t]here is no such thing as the

negligent commission of an intentional tort.” Jd. at 18. The City further argues that

the public duty doctrine precludes liability because the statutory duty “to enforce the

laws and keep the peace . . . is imposed solely on government and owed to the public

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

at large.” Id. at 36. We believe the City misunderstands both the nature of Beltran-

Serrano’s negligence claim and the nature of its law enforcement duty.

A. An Intentional Tort Claim Does Not Foreclose a Negligence Claim Premised

on the Failure To Use Reasonable Care To Avoid the Use of Force

In arguing that Beltran-Serrano seeks to allege negligence in the commission of

an intentional tort, the City fails to appreciate the nature of Beltran-Serrano’s claim.

The core of his negligence claim is that Officer Volk unreasonably failed to follow

police practices calculated to avoid the use of deadly force. CP at 77-78. Beltran-

Serrano focuses on Officer Volk’s negligence leading up to the shooting, including

her failure to respond appropriately to clear signs of mental illness or impairment,

her decision to continue to engage with Beltran-Serrano in English, and her decision

to prevent him from walking away. The negligence allegations also identify Officer

Volk’s lack of adequate training and her failure to recognize the ineffectiveness of

using a stun gun against a mentally ill individual.’ While these negligence claims

> Beltran-Serrano offered testimony from a police practices expert that Officer Volk

failed to recognize Beltran-Serrano was affected by mental illness and did not follow basic

police procedures. Br. of Appellants at 10-11; see CP at 473-81. In her deposition, Officer

Volk stated that she perceived no basis to determine whether Beltran-Serrano was mentally

ill. CP at 475. Beltran-Serrano’s expert reviewed Officer Volk’s training records and

found her last course completed on mental health was in February 2013. Jd. Officer Volk

was unable to recall any training that addressed how to approach someone suffering from

mental illness. CP at 476. Beltran-Serrano also presented the testimony of Volk’s fellow

officer Loretta Cool, who explained that upon approaching the same situation as Officer

Volk, she would have considered the person to have been under the influence of drugs or

mentally ill. CP at 494,

-7-

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

relate to events that culminated in Officer Volk intentionally shooting Beltran-

Serrano, they do not assert a “negligent intentional shooting.” Instead, they require

consideration of the totality of the circumstances involved in the encounter between

Officer Volk and Beltran-Serrano, and identify potential negligence in the series of

actions leading up to the decision to shoot.

The District of Columbia Court of Appeals has considered cases similar to

this one and has explained the distinction between negligence and intentional tort

claims arising from police use of force. District of Columbia v. Chinn, 839 A.2d

701, 710 (D.C. 2003). The court observed, “‘[W]here there is sufficient evidence to

submit to a jury the question of assault and battery, there may be, on the facts of a

particular case, sufficient evidence to submit the question of negligence as well.’”

Id. (alteration in original) (quoting Holder v. District of Columbia, 700 A.2d 738,

742 (D.C. 1997)). Cases allowing for both claims present a set of common

characteristics:

Each involves the use of deadly force. Each invokes a police regulation

establishing a standard of care with respect thereto that is arguably distinct

from the excessive force standard. Each involves alternate scenarios in at

least one of which a distinct act of negligence, a misperception of fact, may

have played a part in the decision to fire. Each involves a negligent act that

precedes the application of the relevant force of resort to firearms, i.e., prior

to the pulling of the trigger.

Id. at 710-11. These characteristics underscore how ordinary negligence principles

apply in situations that involve both a claim of battery or unprivileged use of force

-8-

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

and the duty to act reasonably in carrying out law enforcement functions. The series

of actions culminating in the use of deadly force may be analyzed in its constituent

parts or, alternatively, as involving either negligent or intentional conduct. Jd.; see

also Hayes v. County of San Diego, 57 Cal. 4th 622, 626, 305 P.3d 252, 160 Cal.

Rptr. 3d 684 (2013) (recognizing negligence claim may be asserted for police use of

deadly force “if the tactical conduct and decisions leading up to the use of deadly

force show, as part of the totality of circumstances, that the use of deadly force was

unreasonable”).°

To understand how negligent acts leading up to the ultimate use of force may

be delineated from the use of force itself, one need consider only a variation on the

facts of this case. A person in Beltran-Serrano’s situation might just as readily be

injured, not by an officer shooting, but perhaps by running into a car as he attempts

to flee from the officer in panic. The same acts of negligence remain under either

° The federal district court cases the City relies on miss this overlap between

negligence and battery. See Roufa v. Constantine, No. C15-1379JLR, 2017 WL 120601

(W.D. Wash. Jan. 11, 2017) (court order); Lawson v. City of Seattle, No. C12-1994-MAT, -

2014 WL 1593350 (W.D. Wash. Apr. 21, 2014) (court order); Willard v. City of Everett,

No. C12-14 TSZ, 2013 WL 4759064 (W.D. Wash. Sept. 4, 2013) (court order), aff'd, 637

F. App’x 441 (2016). These cases posit a negligence claim based on the unreasonable use

of force or an unlawful arrest. This does not accurately describe the negligence Beltran-

Serrano alleges. As noted, his negligence claim is premised on Officer Volk’s failure to

understand and apply accepted police procedures in dealing with a mentally ill individual

who has limited English language proficiency, and in avoiding the use of force. The

gravamen of the negligence claim is the mishandling of the encounter, not the use of

excessive force.

-9.

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

scenario, but we would not describe the latter scenario as involving an intentional

tort. By focusing on the alleged acts of negligence during the totality of Officer

Volk’s encounter with Beltran-Serrano, we avoid mischaracterizing this case as

involving “nothing but” an intentional tort.

Our analysis also accords with the practice in Washington of allowing claims

to be pursued under alternative, even inconsistent, theories of recovery. CR 8(e)(2)

(specifying that a party may plead “as many separate claims or defenses as the party

has regardless of consistency”). Here, the fact that Beltran-Serrano may have a valid

intentional tort claim for excessive force has no bearing on the viability of his

negligence claim for violation of the duty to act reasonably. A jury could find one

claim or the other (or neither claim) to be supported. The City certainly has not

conceded that Beltran-Serrano has an assault and battery claim as opposed to a

negligence claim. All claims remain for trial.

The City misreads Boyles v. City of Kennewick, 62 Wn. App. 174, 813 P.2d

178 (1991), as precluding overlapping claims of negligence and assault and battery

under Washington law. See Br. of Resp’t at 9, 22; Resp. to Mot. for Discr. Review

at 12. Boyles merely explains that a police officer may be an intentional tortfeasor

and “‘is liable as such for assault and battery if unnecessary violence or excessive

force is used in accomplishing the arrest.” Boyles, 62 Wn. App. at 176 (citing 6A

C.J.S. Assault & Battery § 27 (1975)). This statement alone, however, does not

-10-

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

support the City’s argument because it does not foreclose a separate claim premised

on negligence. The authority cited in Boyles for the above statement is a Corpus

Juris Secundum entry describing claims for assault and battery. Not only does

Boyles fail to limit actions against law enforcement to intentional torts, it specifically

states that a claim for negligence against a police officer remains possible:

As Ms. Boyles points out, there are no Washington cases mandating a claim

of assault and battery for all injuries inflicted during or after an arrest. While

a claim for negligence against a police officer is possible, it is not raised by

the factual allegations of the complaint in this case and, therefore, does not

relate back to the original pleadings; additional facts would be necessary to

support it.

Id. at 178 (emphasis added). Here, Beltran-Serrano’s amended complaint asserted a

valid claim of negligence and alleged facts necessary to support it. CP at 73-79.

Consistent with Washington case law and CR 8(e)(2), Beltran-Serrano is allowed to

pursue both an intentional tort and a negligence action.

The City further argues that allowing a negligence action based on police use

of force would “circumvent both the defense of self-defense and the standard of

objective reasonableness applicable to an excessive force claim.” Br. of Resp’t at

23. We disagree. The statute the City relies on, RCW 9A.16.040, governs

“[jlustifiable homicide or use of deadly force by public officer, peace officer, [or]

person aiding.” (Boldface omitted.) This statute defines when police officers are

justified in using deadly force. See id. Regardless of whether Beltran-Serrano’s

-11-

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

claims sound in negligence or assault and battery, the statute allows Officer Volk to

argue to the jury that her actions were privileged under the good faith standard of

the statute that requires consideration of “all the facts, circumstances, and

information known to the officer at the time.” RCW 9A.16.040(4). This statutory

standard fully accords with Beltran-Serrano’s view that the facts of this case must

be evaluated under the totality of the circumstances, including Officer Volk’s

preshooting conduct. Br. of Appellants at 27-28.

We hold that Beltran-Serrano’s intentional tort and negligence claims may

coexist under the facts of this case. Considering the totality of the circumstances,

the allegations support a claim for negligence that does not amount to a “negligent

intentional shooting.” Moreover, all facts remain to be determined at trial, and

negligence and intentional tort claims may be pleaded in the alternative under CR

8(e)(2). The superior court erred in dismissing the negligence claims as a matter of

law.

A remaining question is whether Beltran-Serrano’s negligence claims should

nonetheless be dismissed in light of the public duty doctrine. Stated differently, we

must determine whether the duty owed by Officer Volk represents a tort duty owed

specifically to Beltran-Serrano rather than a nonactionable duty owed to the public

as a whole.

-12-

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

B. Officer Volk Owed a Duty in Tort to Beltran-Serrano Based on Her

Affirmative Conduct throughout Their Interaction

The public duty doctrine recognizes that governments, unlike private persons,

are tasked with duties that are not actionable duties within the meaning of tort law.

Washburn, 178 Wn.2d at 753. The central purpose behind the public duty doctrine

is to ensure that governments do not bear greater tort liability than private actors.

Munich v. Skagit Emergency Commc’ns Ctr., 175 Wn.2d 871, 886, 288 P.3d 328

(2012) (Chambers, J., concurring).

To establish a duty in tort against a governmental entity, a plaintiff must show

that the duty breached was owed to an individual and was not merely a general

obligation owed to the public. Babcock, 144 Wn.2d at 785. While there are four

exceptions to the public duty doctrine that provide for liability even in the face of

otherwise public duties, see Munich, 175 Wn.2d at 879, an enumerated exception is

not always necessary to find that a duty is owed to an individual and not to the public

at large.’ Instead, the public duty doctrine is simply a “focusing tool” to ensure that

the government is not held liable in tort for duties owed solely to the general public.

Id. at 878.

’ The four recognized exceptions to the public duty doctrine are (1) legislative intent,

(2) failure to enforce, (3) the rescue doctrine, and (4) a special relationship. Munich, 175

Wn.2d at 879. “If any one of the exceptions applies, the government is held as a matter of

law to owe a duty to the plaintiff.” Zd.

-13-

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

Importantly, this court has recognized that the public duty doctrine comes into

play when special governmental obligations are imposed by statute or ordinance. Jd.

at 886 (Chambers, J., concurring). As to common law negligence, Justice Chambers

pointed out in his concurrence in Munich that “[t]his court has never held that a

government did not have a common law duty solely because of the public duty

doctrine.” Id. at 886-87 (emphasis added).® To apply the doctrine so broadly would

inappropriately lead to a partial restoration of immunity by carving out an exception

to ordinary tort liability for governmental entities. Jd. at 892 (Chambers, J.,

concurring). This would undermine the value of tort liability to protect victims, deter

dangerous conduct and provide a fair distribution of risk of loss. Eastwood v. Horse

Harbor Found., Inc., 170 Wn.2d 380, 407, 241 P.3d 1256 (2010) (Chambers, J.,

concurring).

At common law, every individual owes a duty of reasonable care to refrain

from causing foreseeable harm in interactions with others. Restatement (Second) of

Torts § 281 cmt. e (Am. Law Inst. 1965) explains that “the duty established by law

to refrain from the negligent conduct is established in order to protect the other from

the risk of having his interest invaded by harm resulting from one or more of this

8 Justice Chambers’s concurring opinion is precedential because it received five

votes from justices who also signed the majority opinion. See Shizuko Mita v. Guardsmark,

LLC, 182 Wn. App. 76, 83 n.2, 328 P.3d 962 (2014) (recognizing stare decisis effect of

Justice Chambers’s concurrence in Munich).

-14-

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

limited number of hazards.” This duty applies in the context of law enforcement and

encompasses the duty to refrain from directly causing harm to another through

affirmative acts of misfeasance. See Robb v. City of Seattle, 176 Wn.2d 427, 295

P.3d 212 (2013); see also Coffel v. Clallam County, 47 Wn. App. 397, 403, 735 P.2d

686 (1987) (recognizing that, “if the officers do act, they have a duty to act with

reasonable care”). In Washington, this principle dates to at least the 1926 case of

Jahns v. Clark, which specifically recognized an actionable duty on the part of law

enforcement officers exercising deadly force. 138 Wash. 288, 296-97, 244 P. 729

(1926) (holding sheriff and deputies liable on a bond for civil damages arising from

an “intentional or negligent shooting”).?

Garnett illustrates how recognizing tort liability for negligent law

enforcement activities is consistent with the public duty doctrine. 59 Wn. App. at

287. There, the Court of Appeals identified a law enforcement situation where, even

° Of course, tort liability for law enforcement activities may be limited by the

legislature. Statutes specifically mandate the use of a gross negligence standard for a

variety of law enforcement related activities. See, e.g, RCW 71.05.510 (detention of a

person suffering from mental illness for more than the allowable number of days); RCW

7.69A.040 (failure to provide notice of rights to a child witness or victim); RCW 9.95.204

(supervision of misdemeanant offenders); RCW 4.24.550 (release of information/

classification level of sex offender information to the public). No statute currently alters

the reasonable care standard for law enforcement in the use of deadly force. As noted

above, RCW 9A.16.040 imposes a “good faith” standard and provides that the use of

deadly force is justifiable when “necessarily used by a peace officer meeting the good faith

standard of this section to overcome actual resistance to the execution of the legal process,

mandate, or order of a court or officer, or in the discharge of a legal duty.” RCW

9A.16.040(1)(b).

-15-

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

though no public duty doctrine exception directly applied, the city was liable for its

officers’ negligence. Id. Garnett concerned an interaction between police officers

and two women who were allegedly soliciting customers at a Bellevue hotel and

refused to leave. Jd. at 282. During the interaction, the police officers accused the

women of being prostitutes, saying things like “‘You know what you did and you

know what you are,’” and “‘I am going to pick you up and take you downtown

because we don’t want your kind here.’” Jd. at 284. In addressing the plaintiffs’

claims for negligent infliction of emotional distress, the Court of Appeals focused

on the fact that harm resulted from the officer’s direct contact with the plaintiffs, not

the performance of a general public duty of policing. Jd. at 286. Even though the

facts did not fit neatly into a previously identified exception, the Court of Appeals

correctly rejected the public duty doctrine as a basis to preclude liability. Id. at 286-

287.

The present case aligns with the analysis in Garnett. As noted, under the

common law, “if the officers do act, they have a duty to act with reasonable care.”

Coffel, 47 Wn. App. at 403. Beltran-Serrano’s negligence claims arise out of Officer

Volk’s direct interaction with him, not the breach of a generalized public duty. The

City therefore owed Beltran-Serrano a duty in tort to exercise reasonable care.

Recognizing such a duty does not open the door to potential tort liability for a city’s

statutorily imposed obligation to provide police services, enforce the law, and keep

-16-

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

the peace. These statutory duties have always been, and will continue to be,

nonactionable duties owed to the public at large. In this case, however, the specific

tort duty owed to Beltran-Serrano arises from Officer Volk’s affirmative interaction

with him. The public duty doctrine does not apply to prevent the City from being

found liable in tort.!°

CONCLUSION

The superior court wrongly dismissed Beltran-Serrano’s negligence claims,

which are not foreclosed by his intentional tort claim. Under Washington common

law, the City owes a duty to refrain from causing foreseeable harm in the course of

law enforcement interactions with individuals. Because the duty at issue in this case,

grounded in common law negligence, is owed specifically by Officer Volk to

Beltran-Serrano rather than to the public as a whole, the public duty doctrine does

not apply. Beltran-Serrano has properly pleaded a separate negligence cause of

action and identified genuine issues of material fact regarding Officer Volk’s breach

of the duty to act reasonably. We reverse the superior court order granting summary

'0 Even if we believed it necessary to identify an enumerated exception to the public

duty doctrine, Beltran-Serrano persuasively argues that the rescue doctrine exception

applies here. The rescue doctrine recognizes that a duty to exercise reasonable care arises

when a person undertakes “to render aid to or warn a person in danger.” Brown v.

MacPherson’s, Inc., 86 Wn.2d 293, 299, 545 P.2d 13 (1975). Here, Officer Volk initiated

contact with Beltran-Serrano and sought to educate him about panhandling laws. In the

course of their interaction, Officer Volk’s unreasonable escalation of the encounter to the

use of deadly force significantly increased the risk of harm to Beltran-Serrano.

-17-

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

judgment and remand to the trial court for further proceedings consistent with this

opinion.

-18-

Beltran-Serrano, et al. v. City of Tacoma, 95062-8

WE CONCUR:

Ta lwanad . 00.

-19-

Cesar Beltran-Serrano, et al. v. City of Tacoma

No. 95062-8

MADSEN, J. (dissenting)—A Tacoma police officer stopped her patrol car and

approached a man at the northwest corner of East 28th Street and Portland Avenue, a

location for which police had received complaints about aggressive panhandlers. The

encounter quickly escalated until the officer drew her firearm and shot the man. The

majority holds that these facts support a claim of negligence, but there is no doubt that

the officer acted intentionally when she shot this man and that it was the officer’s action

of shooting the man that caused the injury for which he now seeks compensation. The

majority divorces the first portion of the encounter from the injury and says that the

escalation is the injury. But it is not. The man is seeking redress for being shot; he does

not identify any independent injury related to the escalating conduct. Rather, the events

leading up to the shooting are relevant to support the plaintiffs’ claim for assault and

battery. For these reasons, as expounded below, I dissent.

This case concerns claims against the city of Tacoma stemming from a police

shooting of Cesar Beltran-Serrano, a Spanish-speaking, mentally ill man, on a Tacoma

street following a community caretaking contact with Beltran-Serrano by Tacoma Police

Officer Michel Volk. The present review addresses the trial court’s dismissal on partial

summary judgment of a negligence claim against the city stemming from the noted

No. 95062-8

Madsen, J., dissenting

shooting; at issue is whether Beltran-Serrano’s negligence claim may be maintained in

light of Officer Volk’s intentional shooting of Beltran-Serrano.

As noted, the majority answers that question affirmatively by “focus[ing] on

Officer Volk’s negligence leading up to the shooting” (majority at 7) and reverses the

trial court’s grant of summary dismissal of the negligence claim. In the maj ority’s view,

“t]he gravamen of the negligence claim is the mishandling of the encounter, not the use

of excessive force.” Jd. at9n.6. I disagree. In my view, we cannot so easily parse and

ignore the required elements of a negligence claim. In the present circumstance, where

intentional injury is the basis of the complaint, a claim of negligence is not available as a

matter of law. I begin with the required elements of a negligence claim.

To sustain an actionable negligence claim, a plaintiff must establish four essential

elements: duty, breach, proximate cause, and resulting harm. Pedroza v. Bryant, 101

Wn.2d 226, 228, 677 P.2d 166 (1984); Hansen v. Friend, 118 Wn.2d 476, 479, 824 P.2d

483 (1992); Kennedy v. Sea-Land Serv., Inc., 62 Wn. App. 839, 856, 816 P.2d 75 (1991).

“If any of these elements cannot be met as a matter of law, summary judgment for the

defendant is proper.” Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552-53, 192

P.3d 886 (2008). “A defendant as moving party may prevail by showing that there is an

absence of evidence to support the plaintiffs case.” Kennedy, 62 Wn. App. at 856 (citing

Young v. Key Pharm., Inc., 112 Wn.2d 216, 225 n.1, 770 P.2d 182 (1989)).

Critically, the damage or harm must be the proximate result of the breach of duty;

merely following subsequently in time is not enough. “Negligence and causation are

No. 95062-8

Madsen, J., dissenting

independent legal requirements, and a finding of negligence does not automatically imply

causation.” 65 C.J.S. Negligence § 15 at 301 (2010). Further, “[d]amages constitute an

essential element of a negligence claim; without damages, a negligence claim fails. Proof

of damages, that is, actual injury to the plaintiff, is an essential element of a claim for

negligence.” Jd. § 54, at 351 (footnote omitted). “An allegedly negligent act must cause

an injury in order to be actionable. A plaintiff in a negligence action therefore is

required to adduce evidence showing there was a negligent act on the part of the

defendant and that such act was the cause of the plaintiff's injury.” Id. at 351-52

(emphasis added) (footnote omitted).

If the negligent act or omission has resulted in no injury or loss to

anyone, it is merely injuria sine damno even though it involved a violation

of a statute or ordinance. Even though injury may have resulted, there is no

liability unless such injury was proximately caused by the negligence

complained of; the real cause of action in a negligence case is not the

negligent act but the injury resulting therefrom, since to support the action

there must be not only the negligent act but a consequential injury, and the

injury is the gravamen of the charge.

Id. at 352 (emphasis added) (footnotes omitted).

Put another way, even if the conduct preceding the injury is substandard, such fact

cannot “fill in” for the absence of a proximately caused resulting injury. “An action in

negligence is not determined alone from the doing of an act resulting in injury to another.

Similarly, a defendant’s breach of a duty, standing alone, does not mean that a defendant

is negligent.” Id. § 20, at 305 (footnote omitted). “The essence of negligence is behavior

creating an unreasonable danger to others”—1t is “relative to the time, place,

circumstances, or persons involved”; accordingly, “[n]legligence in the abstract does not

No. 95062-8

Madsen, J., dissenting

support a cause of action.” Jd. § 4, at 280. “To maintain an action in negligence, the

plaintiff must assert in the complaint [the noted four elements]. When these elements are

present, they together constitute negligence, and the absence of any one of these elements

renders the complaint bad or the evidence insufficient.” Jd. § 20, at 305-06 (footnote

omitted),

A negligent or careless act is not necessarily actionable negligence.

To constitute actionable negligence, there must be not only a lack of care,

but such lack of care must involve a breach of some duty owed to a person

who is injured in consequence of such breach. Even though an act or

omission may involve a lack of care, it does not necessarily follow that any

cause of action arises therefrom since negligence which did not contribute

to the damage sustained is negligence, but not actionable negligence, and

negligence is not a tort unless it results in the commission of a wrong or in

harm to someone.

Id. § 11, at 292 (footnotes omitted).

Further, the injury must be cognizable in the negligence context. “The term

‘negligence’ is synonymous with disregard, heedlessness, inadvertence, inattention

oversight and thoughtlessness.” Id. § 15, at 299-300 (footnotes and most internal

quotation marks omitted). “The words ‘negligence’ and ‘intentional’ are contradictory;

negligence is not synonymous with intentional action.” Jd. § 17, at 302 (footnote

omitted); see also Tegman v. Accident & Med. Investigations, Inc., 150 Wn.2d 102, 109-

10, 75 P.3d 497 (2003) (‘‘fault” within the meaning of chapter 4.22 RCW, which

encompasses liability for negligence, does not include intentional acts or omissions);

State Farm Fire & Cas. Co. v. Justus, 199 Wn. App. 435, 455, 398 P.3d 1258, review

No. 95062-8

Madsen, J., dissenting

denied, 189 Wn.2d 1026 (2017) (distinguishing “intentional acts to harm” as “not merely

conduct which created an ‘unreasonable risk of harm’”’).

“Negligence,” by definition, is not an intentional tort: it includes

only such conduct as creates liability for the reason that it involves risk and

not certainty of invading the interest of another, and therefor excludes

conduct which creates liability because of the actor’s intention to invade a

legally protected interest of the person injured.

65 C.I.S. Negligence § 17, at 302 n.1.

[Nlegligence excludes the idea of intentional wrong; the absence of an

intent or purpose to inflict the injury of which complaint is made is

essential to the legal conception of negligence and is an element which

distinguishes it from other torts. Where an intention to inflict the injury

exists, whether that intention is actual or constructive only, the wrongful act

is not negligent but is one of violence or aggression.

Id. § 28, at 313 (emphasis added) (footnotes omitted). Accordingly, “[nJegligence claims

and assault and battery claims... are mutually exclusive.” Jd. § 15, at 300.

With these requirements in mind, turning to the current case, the majority’s focus

on Officer Volk’s alleged substandard conduct concerning her initial contact with

Beltran-Serrano does not cure the absence of a qualifying proximately caused injury.

That is, while Beltran-Serrano was indeed injured, there is no dispute that the shooting of

Beltran-Serrano by Officer Volk was an intentional act. The shooting is the only harm

alleged by Beltran-Serrano in his complaint and is pleaded as the basis for both his

assault and battery claim and his negligence claim. The amended complaint states,

“Defendant [city]... unreasonably, unnecessarily, and without provocation shot Cesar

Beltran ... thereby inflicting an assault and battery on Cesar Beltran.” Clerk’s Papers at

78. The amended complaint further states, “As a direct and proximate result of the

No. 95062-8

Madsen, J., dissenting

breaches, failures, and negligence of Defendant [city], .. . Plaintiff was shot . . . multiple

times causing serious injuries.” Jd. Only a single harm is alleged—the shooting. There

is no dispute that the shooting was intentional. Officer Volk deliberately drew her

service handgun and shot Beltran-Serrano multiple times.'! There is simply no

inadvertence that would support a negligence claim. See 65 C.J.S. Negligence § 14, at

298 (“A negligent act is an inadvertent act.”); see also Boyles v. City of Kennewick, 62

Wn. App. 174, 176, 813 P.2d 178 (1991) (“[A] police officer making an arrest is justified

in using sufficient force to subdue a prisoner, however [the officer] becomes a tortfeasor

and is liable as such for assault and battery if unnecessary violence or excessive force is

used in accomplishing the arrest.” (citing 6A C.J.S. Assault & Battery § 27 (1975))). A

complaint that refers only to intentional, deliberate conduct does not state a prima facie

claim of negligence. “To state a claim for negligence, the underlying complaint must

allege facts that support a conclusion that the conduct was negligent.” Grange Ins. Ass'n

v. Roberts, 179 Wn. App. 739, 769, 320 P.3d 77 (2013). “‘In order to state a cause of

action for negligence, it is necessary to allege facts which would warrant a finding that

the defendant has committed an unintentional breach of a legal duty, and that such breach

was a proximate cause of the harm.’” Jd. (quoting McLeod v. Grant County Sch. Dist.

No. 128, 42 Wn.2d 316, 319, 255 P.2d 360 (1953)).

The majority cites District of Columbia v. Chinn, 839 A.2d 701 (D.C. 2003), and

Hayes v. County of San Diego, 57 Cal. 4th 622, 305 P.3d 252, 160 Cal. Rptr. 3d 684

' Whether that shooting was justified will be determined at trial.

6

No. 95062-8

Madsen, J., dissenting

(2013), as support, but in my view, Chinn argues against the availability of a negligence

claim here and Hayes simply does not convince. In Chinn, “the plaintiff failed to make a

separate and distinct claim for negligence apart from the battery allegations.” 839 A.2d

at 711. Chinn’s allegations “neither establish[ed] a claim separate and distinct from the

alleged battery, nor demonstrate[d] the essential elements of a negligence claim. The

allegations [did] not reflect negligence, but rather an intentional tort with a conclusory

allegation of negligence.” Jd. The same is true here. The Chinn court explained,

The crux of Chinn’s claim is that the officers deliberately inflicted

excessive force upon him, and... assaulted him without provocation.

Chinn did not argue that the officers mistakenly or negligently thought

Chinn was armed; Chinn did not allege that the officers misperceived him

as a threat. The negligence claim... should not have gone to the jury as no

separate and distinct cause or theory of negligence was presented before the

court,

Id. Chinn does not support the notion that a negligence claim can be premised upon an

intentional tort as the majority advocates here.

In Hayes, the California Supreme Court, answering a certified question from the

Ninth Circuit Court of Appeals, noted that under California state law, the court had “long

recognized that peace officers have a duty to act reasonably when using deadly force.”

57 Cal. 4th at 629. The California court explained that in its prior decision in Grudt v.

City of Los Angeles, 2 Cal. 3d 575, 468 P.2d 825, 86 Cal. Rptr. 465 (1970), it had

determined that preshooting circumstances might show that an otherwise reasonable use

of deadly force by officers was, in fact, unreasonable. But the circumstances in Grudt

and Hayes are nothing like the case here. In Grudt, a police officer in plain clothes,

No. 95062-8

Madsen, J., dissenting

carrying a double-barreled shotgun, approached a car, possibly causing the driver to think

he was being robbed or attacked. The driver accelerated the car toward a second

plainclothes officer, and then both officers opened fire on the driver, killing him. See

Hayes, 57 Cal. 4th at 629 (discussing Grudt). In Hayes, police officers were called to a

house and advised that the man inside was potentially suicidal. When the officers entered

the house to investigate, the man approached them, holding a knife in his raised hand.

Both officers drew their firearms and fired two shots, killing the man. Jd. at 626.

In my view, Hayes does not offer any useful guidance here. It is based on foreign

jurisdiction law, and the circumstances in both Hayes and Grudt are simply too different

from the present case to be helpful.? More to the point, for the reasons discussed above, I

disagree with Hayes. While an officer’s use of deadly force must be appropriate,

“Tw]here an intention to inflict the injury exists, whether that intention is actual or

constructive only, the wrongful act is not negligent.” 65 C.J.S. Negligence § 28, at 313.

As discussed above, a plaintiff “may not base claims of negligence on alleged intentional

actions, such as excessive force or unlawful arrest.” Lawson v. City of Seattle, No. C12-

1994-MAT, 2014 WL 1593350, at *13 (W.D. Wash. Apr. 21, 2014) (court order); see

also St. Michelle v. Robinson, 52 Wn. App. 309, 315-16, 759 P.2d 467 (1988) (where

alleged sexual abuse was intentional, and the resulting emotional distress was also

intentionally inflicted as a matter of law, plaintiff cannot state a cause of action for

* In the present case, Officer Volk was not advised that the man she was approaching was

unstable; nor was there any question about Officer Volk’s identity since she was driving a

marked police cruiser and was in uniform when she approached Beltran-Serrano.

8

No. 95062-8

Madsen, J., dissenting

negligent infliction of emotional distress); Willard v. City of Everett, No. C12-14 TSZ,

2013 WL 4759064, at *2 (W.D. Wash. Sept. 4, 2013) (court order), aff'd, 637 F. App’x

441 (2016) (“A plaintiff may not base a claim of negligence on an intentional act, like the

use of excessive force.”); Keates v. City of Vancouver, 73 Wn. App. 257, 267, 869 P.2d

88 (1994) (“As a general rule, law enforcement activities are not reachable in

negligence.”).

Finally, I note that affirming the trial court’s dismissal of the negligence claim

does not leave Beltran-Serrano without a remedy concerning the shooting. As Boyles

noted, where a police officer is alleged to have used excessive force in accomplishing an

arrest, a claim for assault and battery may lie, and Beltran-Serrano has so alleged. See

Boyles, 62 Wn. App. at 176. However, for the reasons discussed, in my view, a

negligence claim based on the intentional shooting that occurred here is simply not

available. I would affirm the trial court’s dismissal of Beltran-Serrano’s negligence

claim. Accordingly, I dissent.

No. 95062-8

Madsen, J., dissenting

10

Beltran-Serrano v. City of Tacoma, No. 95062-8

Wiggins, J., concurring in dissent

No. 95062-8

WIGGINS, J. (concurring in dissent)—I concur in Justice Madsen’s dissent that

a negligence claim based on the intentional act of shooting a weapon is not available.

Dissent at 9. | write separately to emphasize the important distinction in mental states

between negligence and intentional tort claims.

As we have repeatedly held, a cause of action in negligence requires a plaintiff

to show that a defendant owed a duty of care to the plaintiff, there was a breach of

that duty, there was a resulting injury, and there was proximate cause between the

breach and the injury. Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 220,

802 P.2d 1360 (1991). An intentional tort requires, among other things, proof of intent.

For example, an “intentional tort’ is “[a] tort committed by someone acting with general

or specific intent.” BLACK’S LAW DICTIONARY 1717 (10th ed. 2014).

The mental states of intentional torts and negligence are vastly different and

exist on a sliding scale:

If the actor knows that the consequences are certain, or substantially certain,

to result from his [or her] act, and still goes ahead, [the actor] is treated by the

law as if he [or she] had in fact desired to produce the result. As the probability

that the consequences will follow decreases, and becomes less than

substantial certainty, the actor's conduct loses the character of intent, and

becomes mere recklessness, as defined in § 500. As the probability decreases

further, and amounts only to a risk that the result will follow, it becomes ordinary

negligence. .

RESTATEMENT (SECOND) OF TORTS § 8A cmt. b (Am. LAW INST.1965) (RESTATEMENT).

Negligence conveys the idea of neglect or inadvertence, “as distinguished from

Beltran-Serrano v. City of Tacoma, No. 95062-8

Wiggins, J., concurring in dissent

premeditation or formed intention.” Adkisson v. City of Seattle, 42 Wn.2d 676, 682,

258 P.2d 461 (1953).

Thus, an actor cannot be of two minds. He or she may act either negligently,

lacking intent to cause harm, or intentionally, intending to cause or aware that harmful

consequences are substantially certain to result from an action. RESTATEMENT § 8A.

These mental states are mutually exclusive. /d. §§ 8A, 282 cmt. d; DAN B. DOBBS ET

AL., THE LAW OF TORTS § 31, at 77 (2d ed. 2011) (“Any given act may be intentional or

it may be negligent, but it cannot be both. Intent and negligence are regarded as

mutually exclusive grounds for liability.”).

Here, assuming that Cesar Beltran-Serrano could prove the first three elements

in negligence, he cannot prove that the proximate cause of his injuries resulted from

anegligent act. The sole cause of Beltran-Serrano’s injury was the shooting of Officer

Michel Volk’s weapon. The officer's decision to pull the trigger was intentional. This

fact cannot be used simultaneously as evidence of intention and negligence, as

liability under these theories requires distinct and mutually exclusive mental states.

E.g., RESTATEMENT § 8A.

The majority’s decision combines two mutually exclusive principles of tort law

and does not answer the inherent conflict it creates in so doing. A claim is one of

either negligence or intention—it cannot be both. If a principled path existed to

reconciling these conflicting principles, the majority would have offered such a path.

It has not, and this silence is telling.

Accordingly, | respectfully dissent.

Beltran-Serrano v. City of Tacoma, No. 95062-8

Wiggins, J., concurring in dissent

Migpoe)

Ve (/